Bockting v. Bayer

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN HOWARD BOCKTING,  No. 02-15866

Petitioner-Appellant, D.C. No.

v.

 CV-98-00764-ECR

ROBERT BAYER, ORDER AND

Respondent-Appellee. AMENDED

 OPINION

Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, District Judge, Presiding

Argued and Submitted

January 14, 2004—San Francisco, California

Filed February 22, 2005

Amended June 1, 2005

Before: J. Clifford Wallace, John T. Noonan, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge Noonan;

Partial Concurrence and Partial Dissent by Judge Wallace

5877

5880 BOCKTING v. BAYER

COUNSEL

Franny A. Forsman, Federal Public Defender, Las Vegas,

Nevada, for the appellant.

Victor-Hugo Schulze II, Deputy Attorney General, Las

Vegas, Nevada; Rene L. Hulse, Deputy Attorney General, Las

Vegas, Nevada, for the appellee.

ORDER

The opinion filed February 22, 2005, slip op. 1991, and

appearing at 399 F.3d 1010 (9th Cir. 2005), is amended as fol-

lows:

At 399 F.3d 1022, slip op. 2012, strike the last paragraph

of Part II. Substitute the following paragraph:

The final question is whether admission of Autumn’s

statement “had substantial and injurious effect or

BOCKTING v. BAYER 5881

influence in determining the jury’s verdict.” See

Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

The detective’s testimony regarding Autumn’s inter-

view was a critical piece of evidence, particularly in

view of Autumn’s inconsistent testimony at the pre-

liminary hearing, and weaknesses in Laura Bock-

ting’s testimony. Even if Autumn’s statement to the

mother was, for argument’s sake, considered admis-

sible, the detective’s description of Autumn’s inter-

view was so significant as corroborating evidence

that its admission had a substantial and injurious

effect or influence in determining the jury’s verdict.

Thus, the admission of Autumn’s statement requires

reversal.

The petition for panel rehearing is DENIED. The petition

for rehearing en banc is pending before the Court. No further

petitions may be filed.

OPINION

McKEOWN, Circuit Judge:

Marvin Bockting’s conviction for sexual abuse and life sen-

tences stem from a trial in which the only witness to the con-

duct, his six-year old stepdaughter, Autumn Bockting, did not

testify at trial, but whose interview with a detective was

admitted as key evidence. Autumn’s statements at the inter-

view contradicted her testimony at a preliminary hearing

where she claimed not to remember what happened with her

father. Admission of the interview evidence without cross-

examination violated Bockting’s constitutional right “to be

confronted with the witnesses against him.” U.S. Const.

amend. VI.

Although this case has been before the Nevada Supreme

Court twice and before the United States Supreme Court on

5882 BOCKTING v. BAYER

one occasion, resolution now rests on interpretation of an

intervening Supreme Court case: Crawford v. Washington,

541 U.S. 36, 124 S. Ct. 1354 (2004). In Crawford, the Court

definitively held that “[t]estimonial statements of witnesses

absent from trial have been admitted only where the declarant

is unavailable and only where the defendant has had a prior

opportunity to cross-examine.” 124 S. Ct. at 1369. Because

the little girl’s testimony, which was not subject to cross-

examination, was central to the conviction, its admission can

hardly be classified as harmless error. Crawford dictates

reversal.

The thorny issue is whether Crawford applies retroactively

to this state habeas appeal. In an earlier case, we reserved this

question for future consideration. See Leavitt v. Arave, 383

F.3d 809, 830 n.22 (9th Cir. 2004) (per curiam). If, as Judge

Noonan argues, Crawford simply reiterates a longstanding

rule and does not announce a new rule, then retroactivity falls

out of our analysis. If, on the other hand, Crawford is charac-

terized as a “new rule,” then we are faced with analyzing the

retroactivity of Crawford in the framework of yet another

recent Supreme Court case, Schriro v. Summerlin, ___ U.S.

___, 124 S. Ct. 2519 (2004). New rules apply retroactively

only where they place “certain kinds of primary, private indi-

vidual conduct beyond the power of the criminal law-making

authority to proscribe,” or where the new rule is “implicit in

the concept of ordered liberty.” Teague v. Lane, 489 U.S. 288,

307 (1989). The latter category is “reserved for watershed

rules of criminal procedure.” Id. at 311.

The threshold question is whether Crawford constitutes a

“new rule” under Teague. Judge Noonan’s approach—namely

that Crawford does not announce a new rule but rather is a

“correction of a misinterpretation,” Concurrence at 5902—

has a certain appeal in light of the Court’s historical emphasis

in Crawford. Indeed, one can read Crawford as intimating

that the rule is longstanding. Unfortunately, Justice Scalia’s

analysis is not entirely consistent with that viewpoint. None-

BOCKTING v. BAYER 5883

theless, characterizing Crawford as something less than a new

rule, as Judge Noonan does, is one legitimate way of inter-

preting Crawford. To do so leads to the same result here—the

application of Crawford to Bockting’s pending habeas claims.

Despite the appeal of Judge Noonan’s reasoning, applica-

tion of the Supreme Court’s guidance in Teague leads to the

conclusion that Crawford announces a “new rule.” Because

the Crawford rule is both a “watershed rule” and one “without

which the likelihood of an accurate conviction is seriously

diminished,” Summerlin, 124 S. Ct. at 2523, the rule is retro-

active.

I. FACTUAL BACKGROUND

Marvin Bockting lived with his wife, Laura, and his two

daughters, Autumn and Honesty, in a motel in Las Vegas.

Autumn had taken showers together with Laura and Bockting.

She had also seen them having sex, and she was accustomed

to the use of sexual language.

One Saturday night, when Laura was at home alone with

the children, Autumn Bockting woke up crying. Her mother

observed that “she looked like she had just woken up from a

bad dream and she was quite upset.” At first she refused to

tell Laura what was wrong. Laura asked why she wouldn’t

tell. Autumn told her, “Because daddy said that you would

make him leave and that he would beat my butt if I told you.”

After reassurance from her mother, Autumn said “daddy put

his pee-pee in her pee-pee, and that daddy put his pee-pee in

her butt, and daddy made her suck on his pee-pee like it was

a sucker.”

The next day, Laura confronted Bockting. She asked him

to leave, which he did. Two days later, a Tuesday, Laura cal-

led the rape crisis hotline and was told to take Autumn to the

hospital, where they were met by Detective Zinovitch.

Zinovitch tried to interview Autumn, but she was too upset.

5884 BOCKTING v. BAYER

A rape examination was performed. The doctor found that

Autum’s rectal sphincter had been torn within the past week.

She also found that Autumn’s hymenal ring was wide open,

a rarity in a six-year old. The doctor determined that although

she “couldn’t determine what kind of instrument or foreign

body was used to cause the laxness of the hymen and the fis-

sure of the rectum,” it had been caused by a blunt force. Two

days later, Autumn was again interviewed by a detective. She

repeated what she had told her mother, accurately describing

the positions of the sex acts. She also demonstrated the acts

with anatomically correct dolls.

At Bockting’s preliminary hearing, Autumn was able to

answer questions about the difference between the truth and

a lie, but became upset when she was asked about being

touched by Bockting. Upon further questioning, she said she

could not remember what occurred with her father and did not

remember whether she had talked with the detective about the

claimed assault. The judge declared Autumn an unavailable

witness, and the preliminary hearing proceeded with the testi-

mony of Laura and Zinovitch. At trial, the judge found that

Autumn’s hearsay statements were admissible because she

was effectively unavailable for trial. Without having the

opportunity to cross-examine Autumn, Bockting was con-

victed and sentenced to life in prison.

Bockting appealed to the Nevada Supreme Court, which

dismissed his claims. The United States Supreme Court later

vacated the Nevada Supreme Court’s decision, remanding for

consideration in light of Idaho v. Wright, 497 U.S. 805

(1990). In 1993, the Nevada Supreme Court affirmed Bock-

ting’s conviction. He filed a second petition for post-

conviction relief, which the state district court denied in 1994.

Three years later, the Nevada Supreme Court again dismissed

the appeal. Bockting then sought relief in federal court. He

timely filed a habeas petition in 1998, which he amended in

2000. The district court denied the petition, and Bockting

filed the present appeal.

BOCKTING v. BAYER 5885

II. DISCUSSION

Because Bockting filed his petition after the effective date

of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), its provisions apply. See Woodford v. Garceau,

538 U.S. 202, 207 (2003). Under AEDPA, habeas relief to a

state prisoner is available only if the state court’s decision “re-

sulted in a decision that was contrary to, or involved an unrea-

sonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or

was “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(1)-(2).

The Supreme Court also directs us that “in addition to per-

forming any analysis required by AEDPA, a federal court

considering a habeas petition must conduct a threshold

Teague analysis when the issue is properly raised by the

state.” See Horn v. Banks, 536 U.S. 266, 272 (2002). Indeed,

as the Court noted, “if our post-AEDPA cases suggest any-

thing about AEDPA’s relationship to Teague, it is that the

AEDPA and Teague inquiries are distinct.” Id.

[1] In explaining Teague’s application, the Supreme Court

recently explained that there are three steps to determining

whether a rule of criminal procedure applies on collateral

review:

First, the court must determine when the defendant’s

conviction became final. Second, it must ascertain

the legal landscape as it then existed, and ask

whether the Constitution, as interpreted by precedent

then existing, compels the rule. That is, the court

must decide whether the rule is actually “new.”

Finally, if the rule is new, the court must consider

whether it falls within either of the two exceptions to

nonretroactivity.

5886 BOCKTING v. BAYER

Beard v. Banks, 124 S. Ct. 2504, 2510 (2004) (internal cita-

tions omitted). Because Bockting’s conviction became final in

1993, we must evaluate whether any subsequent rule of con-

stitutional law is new against the benchmark of that year.

A. CRAWFORD ANNOUNCED A NEW RULE

The question before us is whether the Confrontation Clause

principles stated in Crawford amount to a new rule. In Craw-

ford, the Supreme Court considered whether Washington

State’s use at trial of a witness’s tape-recorded statement to a

police officer violated the Confrontation Clause. 124 S. Ct. at

1357. Writing for the Court, Justice Scalia engaged in a

lengthy historical analysis of the Confrontation Clause, noting

that “the principal evil at which the Confrontation Clause was

directed was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence

against the accused.” Id. at 1363 (emphasis added). He went

on to emphasize “that the Framers would not have allowed

admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.”

Id. at 1365 (emphasis added).

[2] Whether the rule in Crawford is new depends on

whether it “was dictated by the then-existing precedent.”

Beard, 124 S. Ct. at 2511. To be sure, the majority in Craw-

ford is somewhat opaque as to the categorization of its ulti-

mate holding. As the Court noted, “[a]lthough the results of

our decisions have generally been faithful to the original

meaning of the Confrontation Clause, the same cannot be said

of our rationales.” 124 S. Ct. at 1369. The puzzler is whether

the “results of [the Supreme Court] decisions” are coextensive

with the rules of those decisions. If so, then the Crawford pro-

nouncement could be legitimately viewed as a continuation of

Supreme Court jurisprudence. Careful scrutiny of the Craw-

ford opinion suggests otherwise for at least two reasons: (1)

Crawford deviates from the test announced in Ohio v. Rob-

BOCKTING v. BAYER 5887

erts, 448 U.S. 56 (1980); and (2) simply reaching the right

“result” does not mean that the result flowed from a constant

rule.

As the Court observed, “Roberts conditions the admissibil-

ity of all hearsay evidence on whether it falls under a ‘firmly

rooted hearsay exception’ or bears particularized guarantees

of trustworthiness.” Crawford, 124 S. Ct. at 1369 (quoting

Roberts, 448 U.S. at 66). Roberts rests on evidentiary princi-

ples of reliability and trustworthiness rather than on the con-

stitutional principle of confrontation.

The Crawford majority quite clearly states that the Roberts

“test departs from the historical principles” in that it is both

“too broad” and “too narrow.” Crawford, 124 S. Ct. at 1369.

Crawford did not announce the same rule as Roberts.

Whereas Roberts countenanced the admission of witness testi-

mony if trustworthy, under Crawford the testimony is admit-

ted only if the witnesses are subject to cross-examination. The

Court concluded that the cases applying Roberts have “re-

mained faithful to the Framers’ understanding,” id. at 1369,

that testimonial statements are admissible only when two

criteria are met: unavailability and opportunity for cross-

examination. In other words, “[w]here testimonial statements

are at issue, the only indicium of reliability sufficient to sat-

isfy constitutional demands is the one the Constitution actu-

ally prescribes: confrontation.” Id. at 1374. Although

historical principles are the bedrock for the Crawford deci-

sion, getting back to the bedrock required the Court to dis-

avow the Roberts test. The dissent in Crawford mirrors this

view by concluding that “the Court of course overrules Ohio

v. Roberts,” id. at 1378, and criticizing the “Court’s adoption

of a new interpretation of the Confrontation Clause. . . . ,” id.

at 1374.

To say that the outcomes or “results” have been generally

“faithful to the original meaning” is not the same as saying

that there has been a consistent rule throughout our history.

5888 BOCKTING v. BAYER

Indeed, the result in an individual case may well be consistent

with the Supreme Court’s new interpretation of Crawford, but

that does not mean that the rule that dictated the prior result

is necessarily consistent with Crawford. The majority in fact

underscores the dichotomy between outcomes and rules in

announcing that, “[i]f nothing else, the test we announce is an

empirically accurate explanation of the results our cases have

reached.” Id. at 1369 n.9. Rules and outcomes are neither the

same nor wholly overlapping.

Finally, the Court in Crawford pinpointed a situation that

was, in fact, “arguably in tension with the rule requiring a

prior opportunity for cross-examination when the proffered

statement is testimonial.” Id. at 1368 n.8. Citing White v. Illi-

nois, 502 U.S. 346 (1992), the Court described a case remark-

ably similar to ours, in which “statements of a child victim to

an investigating police officer [were] admitted as spontaneous

declarations.” Id. White rested on the issue of the unavaila-

bility requirement under the Confrontation Clause; had Craw-

ford been the rule at the time, the lack of cross-examination

would have been fatal to the admission of the evidence.

[3] Although the long line of Confrontation Clause cases is

“faithful to the original meaning” of the clause, id. at 1369,

we cannot overlook Roberts and White. On balance, an analy-

sis of the historical application of the Confrontation Clause

cases leads to the conclusion that Crawford announces a new

rule that must be put through the Summerlin strainer. If, on

the other hand, Crawford does not announce a new rule—the

position taken by Judge Noonan—then the Summerlin analy-

sis is not required. Either way, the result in this case is the

same. Bockting’s petition should be granted.

B. SUMMERLIN CONTROLS THE RETROACTIVITY ANALYSIS

Because Crawford announces a new rule, we must ask

whether it falls into one of the two Teague exceptions to the

bar on retroactivity. The first Teague exception is for primary

BOCKTING v. BAYER 5889

conduct that cannot be criminalized. The second is for bed-

rock rules of criminal procedure. Teague, 489 U.S. at 307. It

is the second exception that is at play in this case.

[4] The Crawford rule does not narrow the scope of a crim-

inal statute by interpreting its terms, nor is it a constitutional

determination that places particular conduct or persons cov-

ered by the statute beyond the State’s power to punish. Sum-

merlin, 124 S. Ct. at 2522. Rather, the rule in Crawford is

procedural. See also Crawford, 124 S. Ct. at 1370 (stating the

Confrontation Clause provides “a procedural rather than a

substantive guarantee”). Therefore, Crawford merits retroac-

tive application only if it implicates “the fundamental fairness

and accuracy of the criminal proceeding,” Saffle v. Parks, 494

U.S. 484, 495 (1990), and reworks our understanding of bed-

rock criminal procedure, Sawyer v. Smith, 497 U.S. 227, 242

(1990).

[5] To be sure, under Summerlin, the lower courts are

tightly constrained in determining whether a new rule is a

“watershed rule” that is not only fundamental, but one “with-

out which the likelihood of an accurate conviction is seriously

diminished.” Summerlin, 124 S. Ct. at 2523 (quoting Teague,

489 U.S. at 313). Viewing Crawford and Summerlin together

poses a conundrum. Justice Scalia wrote for the majority in

both cases. In Summerlin, the Court admonished that “[t]his

class of [retroactive] rules is extremely narrow, and it is

unlikely that any . . . ha[s] yet to emerge.” 124 S. Ct. at 2523

(quoting Tyler v. Cain, 533 U.S. 656, 667 n.7 (2001)) (inter-

nal quotations omitted). Nonetheless, the bar is not absolute

and the Crawford rule meets the Court’s criteria. Admonitions

such as in Summerlin offer discouragement but no guidance.

Because our job is not to conjure up hidden meaning, we sim-

ply heed the warning and our analysis thus adheres faithfully

to the holding and rationale of Summerlin. Viewing Crawford

in light of Summerlin leads to the conclusion that the Craw-

ford cross-examination requirement merits retroactive appli-

cation.

5890 BOCKTING v. BAYER

That the Crawford requirement is fundamental to our legal

regime is beyond dispute. Justice Scalia’s eloquent recitation

of the history, purpose, and place of the Confrontation Clause

and cross-examination answers this question. Crawford, 124

S. Ct. at 1359. Hundreds of years of tradition have embedded

this notion as a fundamental role. Indeed, “[t]he Framers

would be astounded to learn that ex parte testimony could be

admitted against a criminal defendant because it was elicited

by ‘neutral’ government officers.” Id. at 1373.

The question next posed is whether the rule implicates the

accuracy of the criminal proceeding. Juxtaposed, Summerlin

actually underscores why the Crawford rule implicates the

“fundamental fairness and accuracy of the criminal proceed-

ing,” Saffle, 494 U.S. at 495, and alters our understanding of

bedrock procedural principles, whereas the sentencing scheme

in Summerlin did not. In Summerlin, the Court concluded that

Ring v. Arizona, 536 U.S. 584 (2002), which held that aggra-

vating factors in a death penalty case must be proved to a jury

rather than to a judge, was not a retroactive rule. Summerlin

asked “whether judicial factfinding so seriously diminishe[s]

accuracy that there is an impermissibly large risk of punishing

conduct the law does not reach.” Summerlin, 124 S. Ct. at

2525 (citations and quotations omitted). The answer was no

because “[t]he evidence is simply too equivocal to support

that conclusion.” Id.

In Summerlin, the Court observed that “for every argument

why juries are more accurate factfinders, there is another why

they are less accurate.”1 In contrast, the evidence that cross-

1

The Court rejected the notion that the jury trial right seriously impacted

accuracy in part because the jury-free civil law system is so prevalent:

“[T]he mixed reception that the right to jury trial has been given in other

countries . . . surely makes it implausible that judicial factfinding so seri-

ously diminishe[s] accuracy as to produce an impermissibly large risk of

injustice.” 124 S. Ct. at 2525 (internal quotations omitted).

Unlike the “mixed reception that the right to jury trial has been given

in other countries,” id., the right of confrontation is well established in

BOCKTING v. BAYER 5891

examination seriously decreases the possibility of inaccurate

conviction is unequivocal.

[6] The Supreme Court has repeatedly and without devia-

tion held that the purpose of the Confrontation Clause is to

promote accuracy. See, e.g., Crawford, 124 S. Ct. at 1370

(“This open examination of witnesses . . . is much more con-

ducive to the clearing up of truth.”) (quoting 3 Blackstone,

Commentaries * 373); White v. Illinois, 502 U.S. 346, 355

(1992) (evaluating a Confrontation Clause claim against the

benchmark of accuracy); Tennessee v. Street, 471 U.S. 409,

415 (1985) (describing the “Confrontation Clause’s very mis-

sion” as “to advance the accuracy of the truth-determining

process in criminal trials”) (internal quotation omitted); Ohio

v. Roberts, 448 U.S. 56, 65 (1980) (stating the purpose of the

Confrontation Clause is to “augment accuracy in the factfind-

ing process”); Parker v. Randolph, 442 U.S. 62, 73 (1979)

(plurality) (“The right of confrontation conferred by the Sixth

Amendment is a safeguard to ensure the fairness and accuracy

of criminal trials.”); Chambers v. Mississippi, 410 U.S. 284,

295 (1973) (“The right of cross-examination is more than a

desirable rule of trial procedure. It is implicit in the constitu-

international practice. Justice Scalia noted in Crawford that “the right to

confront one’s accusers is a concept that dates back to Roman times.”

Crawford, 124 S. Ct. at 1359. He then went on to chronicle the history in

England. Although not mentioned in Crawford, it bears noting that the

right of confrontation is firmly implanted in the jurisprudence of other

European countries. For example, the European Convention on Human

Rights, articles (6)(1) and (6)(3)(D), give the right “to examine or have

examined witnesses against him.” The European Court of Human Rights

has established a right of confrontation: Saïdi v. France, 17 Eur. Ct. H.R.

251, 270 (1993) (“Neither at the stage of the investigation nor during the

trial was the applicant able to examine or have examined the witnesses

concerned. The lack of any confrontation deprived him in certain respects

of a fair trial”). See also Van Mechelen v. Netherlands, 25 Eur. Ct. H.R.

647, 673 (1997); Lüdi v. Switzerland, 15 Eur. Ct. H.R. 173 (1992);

Windisch v. Austria, 13 Eur. Ct. H.R. 281 (1990); Delta v. France, 16 Eur.

Ct. H.R. 574 (1990); Kostovski v. Netherlands, 12 Eur. Ct. H.R. 434, 448-

49 (1989).

5892 BOCKTING v. BAYER

tional right of confrontation, and helps assure the ‘accuracy of

the truth-determining process.’ ”); Dutton v. Evans, 400 U.S.

74, 89 (1970) (plurality) (“The decisions of this Court make

it clear that the mission of the Confrontation Clause is to

advance a practical concern for the accuracy of the truth-

determining process in criminal trials . . . .”); Pointer v.

Texas, 380 U.S. 400, 404 (1965) (“[P]robably no one, cer-

tainly no one experienced in the trial of lawsuits, would deny

the value of cross-examination in exposing falsehood and

bringing out the truth in the trial of a criminal case.”); Mattox

v. United States, 156 U.S. 237, 242-43 (1895) (describing the

“primary object” of the Confrontation Clause as “to prevent

depositions or ex parte affidavits . . . being used against the

prisoner in lieu of a personal examination and cross-

examination of the witness, in which the accused has an

opportunity, not only of testing the recollection and sifting the

conscience of the witness, but of compelling him to stand face

to face with the jury in order that they may look at him, and

judge by his demeanor upon the stand and the manner in

which he gives his testimony whether he is worthy of belief”).

See also M. Hale, History and Analysis of the Common Law

of England 258 (1713) (adversarial testing “beats and bolts

out the Truth much better”) (quoted in Crawford, 124 S. Ct.

at 1370).

But accuracy and reliability do not exist in a vacuum.

Rather, “[t]he central concern of the Confrontation Clause is

to ensure the reliability of the evidence against a criminal

defendant by subjecting it to rigorous testing in the context of

an adversary proceeding before the trier of fact. “The word

‘confront,’ after all, also means a clashing of forces or ideas,

thus carrying with it the notion of adversariness.” Maryland

v. Craig, 497 U.S. 836, 845 (1990). Even more to the point,

the Court wrote, “[t]he combined effect of these elements of

confrontation—physical presence, oath, cross-examination,

and observation of demeanor by the trier of fact—serves the

purposes of the Confrontation Clause by ensuring that evi-

dence admitted against an accused is reliable and subject to

BOCKTING v. BAYER 5893

the rigorous adversarial testing that is the norm of Anglo-

American criminal proceedings.” Id. at 846 (emphasis added).

Crawford itself answers the question of whether the

absence of cross-examination “so seriously diminishe[s] accu-

racy that there is an impermissibly large risk of punishing

conduct the law does not reach” Summerlin, 124 S. Ct. at

2525 (internal quotations omitted):

• “The framework is so unpredictable that it fails to

provide meaningful protection from even core

confrontation violations.” Crawford, 124 S. Ct. at

1371.

• “[T]he [general reliability] test is inherently, and

therefore permanently, unpredictable. Id. at 1374

n.10. “It is difficult to imagine [the general reli-

ability framework] providing any meaningful

protection in [politically charged cases].” Id. at

1374.

• “[W]e view this as one of those rare cases in

which the result below is so improbable that it

reveals a fundamental failure on our part to inter-

pret the Constitution in a way that secures its

intended constraint on judicial discretion.” Id. at

1373.

[7] Thus, at the heart of the Court’s concerns in Crawford

was the reliability of admitted evidence. Where admitted evi-

dence is unreliable, the accuracy of convictions is seriously

undermined. That the rule in Crawford is one without which

the accuracy of convictions would be seriously undermined is

further born out by the Court’s own description of its prior

doctrine as a “rare case” of “fundamental failure.” Id. at 1373.

The difference between pre- and post-Crawford Confrontation

Clause jurisprudence is not the sort of change that can be dis-

5894 BOCKTING v. BAYER

missed as merely incremental. Instead, it is an “absolute pre-

requisite to fundamental fairness.” Sawyer, 497 U.S. at 244.

In Crawford, the Court itself faults the previous regime

under Roberts. Crawford, 124 S. Ct. at 1371-73. Indeed, to

benchmark reliability against Roberts would undermine

Crawford’s central thesis. Reliance on Roberts’ judicially-

administered reliability test gives illusory comfort, as “[t]he

[Confrontation] Clause . . . reflects a judgment . . . about how

reliability can best be determined,” id. at 1370, and “[t]he leg-

acy of Roberts in other courts vindicates the Framers’ wisdom

in rejecting a general reliability exception,” id. at 1371.2

The retroactivity inquiry is not conducted in a vacuum.

Rather, the analysis is modeled on the Summerlin require-

ments. But even if a “look back” to Roberts were appropriate,

as Judge Wallace suggests, Crawford would be retroactive.

[8] Rules that are properly considered retroactive are those

that “alter our understanding of the bedrock procedural ele-

ments essential to the fairness of a proceeding.” Sawyer v.

Smith, 497 U.S. 227, 242 (1990) (internal quotations omitted).

As the Court recently stated, “[i]n providing guidance as to

what might fall within this exception, we have repeatedly

referred to the rule of Gideon v. Wainright, 372 U.S. 335

(1963).” Beard, 124 S. Ct. at 2514 (citing Saffle, 494 U.S. at

495, Gilmore v. Taylor, 508 U.S. 333, 364 (1993) (Blackmun,

J., dissenting)). Recognizing that bedrock procedural rules are

very few in number, it is no leap to conclude that the right of

cross-examination as an adjunct to the constitutional right of

confrontation joins the very limited company of Gideon.

2

Judge Wallace’s effort to rest the analysis on the reliability test under

Roberts forces a false dichotomy between reliability and cross-

examination and overlooks the fact that “some of the courts that admit

untested testimonial statements find reliability in the very factors that

make the statements testimonial.” Id. at 1372.

BOCKTING v. BAYER 5895

We join one other circuit that has concluded that Crawford

announces a new rule, although its retroactivity analysis dif-

fers from ours. See Brown v. Uphoff, 381 F.3d 1219 (10th Cir.

2004). The Second Circuit did not directly address the new

rule issue but concluded that even if Crawford did announce

a new rule, it would not be retroactive. Mungo v. Duncan, 393

F.3d 327, 336 (2d Cir. 2004).

Addressing the question of a new rule, the Tenth Circuit

reasoned as follows:

As we explained above, prior to the decision in

Crawford, Roberts provided the appropriate frame-

work for determining whether the admission of hear-

say statements violated the Confrontation Clause.

The Supreme Court itself noted that the logic of

Roberts was inconsistent with the Court’s conclusion

in Crawford that the Confrontation Clause requires

an opportunity to cross-examine before testimonial

hearsay may be admitted against the defendant.

Crawford, ___ U.S. at ___, 124 S. Ct. at 1369. Thus,

Roberts and its progeny did not dictate the result in

Crawford and we conclude that it announces a new

rule of constitutional law. See Crawford, at ___, 124

S. Ct. at 1374 (Rehnquist, C.J., dissenting) (referring

to the majority’s holding as a “new interpretation of

the Confrontation Clause”).

Brown, 381 F.3d at 1226. Our analysis is in accord.

But the Tenth Circuit diverges from us in holding that

Crawford is not retroactive because it does not set forth a

watershed rule of criminal procedure. Id. Stating that unless

a new rule is “on the magnitude of the rule announced in Gid-

eon v. Wainright,” it will not fit within the Teague watershed

rule exception, the court explained:

Unlike Gideon, Crawford does not ‘alter[ ] our

understanding of what constitutes basic due process,’

5896 BOCKTING v. BAYER

but merely sets out new standards for the admission

of certain kinds of hearsay. Confrontation Clause

violations are subject to harmless error analysis and

thus may be excused depending on the state of the

evidence at trial. It would, therefore, be difficult to

conclude that the rule in Crawford alters rights fun-

damental to due process.

Id. at 1226-27 (internal citations omitted).

The Supreme Court’s Confrontation Clause jurisprudence

in Crawford cannot be dismissed as a mere tweak on the

admissibility of hearsay. See Brown, 281 F.3d at 1226. The

Supreme Court surely did not conceive of it as such. Rather,

the Court describes the right of confrontation as a “bedrock

procedural guarantee,” notes that it “dates back to Roman

times” and was part of the common law known to the found-

ing generation. Crawford, 124 S. Ct. at 1359. The Court also

contrasts “exclusion under the hearsay rules” with “the civil-

law abuses the Confrontation Clause targeted.” Crawford, 124

S. Ct. at 1364. In a rare mea culpa, the Court faults itself for

not enunciating the Crawford rule earlier, stating that “it

reveals a fundamental failure on our part to interpret the Con-

stitution in a way that secures its intended constraint on judi-

cial discretion.” Id. at 1373. There is nothing “mere” about

the Crawford rule.

The Tenth Circuit mistakenly concluded that rules of con-

stitutional law subject to harmless error review can never be

considered bedrock rules of procedure. The two inquiries

hinge on different questions. Whether a rule is a bedrock rule

of procedure depends on whether it increases the likelihood of

accurate conviction. Summerlin, 124 S. Ct. at 2523. Whether

a rule is subject to harmless error analysis depends on whether

the impact of the error can be measured. See Arizona v. Ful-

minante, 499 U.S. 279, 307-08 (1991). Therefore, a rule of

constitutional law could be essential to promote accurate con-

victions, but still subject to harmless error review if the

BOCKTING v. BAYER 5897

impact of misapplication of the rule were easily measurable.

In short, because accuracy and measurability are different

concepts, whether a rule of constitutional law is subject to

harmless error review does not answer the question whether

it is a bedrock rule of procedure.

[9] After assuming that Crawford announced a new rule,

the Second Circuit rejected retroactivity, reasoning that the

Crawford rule would not improve overall accuracy because

“it is likely to improve accuracy in some circumstances and

diminish it in others.” Mungo, 393 F.3d at 335. The flaw in

this analysis is that the Second Circuit has substituted its

judgment of whether the Crawford rule is one without which

the accuracy of conviction is seriously diminished, for the

Supreme Court’s considered judgment. The Court has found

repeatedly that the purpose of the Confrontation Clause is to

promote accuracy, see, e.g., Tennessee v. Street, 471 U.S.

409, 415 (1985), and thus Crawford rejected the Roberts

framework as reflective of “a fundamental failure on our part

to interpret the Constitution in a way that secures its intended

constraint on judicial discretion,” Crawford, 124 S. Ct. at

1373. Viewing these holdings together leads to the conclusion

that the Crawford rule is one without which the likelihood of

accurate conviction is seriously diminished.

C. BOCKTING MERITS RELIEF UNDER AEDPA

Having determined that Crawford is retroactive, the

remaining task is to determine whether, under AEDPA, the

Nevada Supreme Court’s analysis was either “contrary to, or

involved an unreasonable application of, clearly established

Federal law.” 28 U.S.C. § 2254(d)(1)-(2). The Supreme Court

has yet to address directly whether AEDPA was intended or

should be read to adopt the Teague exceptions. Williams v.

Taylor, 529 U.S. 362, 380 (2000) (Stevens, J., for four jus-

tices) (“AEDPA codifies Teague to the extent that Teague

requires federal habeas courts to deny relief that is contingent

upon a rule of law not clearly established at the time the state

5898 BOCKTING v. BAYER

conviction became final.”). Application of Teague is the

means by which new rules are made retroactive. As noted ear-

lier, the Court has clarified that the Teague and AEDPA

inquiries are separate. Horn, 536 U.S. at 272. But in directing

us to undertake both inquiries in an AEDPA case, the Court

has impliedly endorsed the application of Teague in the

AEDPA context. Further, it appears that Congress intended to

preserve the Teague exceptions because AEDPA explicitly

provides for their application in proceedings involving state

habeas petitions. See 28 U.S.C. § 2254(e) (“If the applicant

has failed to develop the factual basis of a claim in State court

proceedings, the court shall not hold an evidentiary hearing on

the claim unless the applicant shows that . . . the claim relies

on a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court.”) But even if Con-

gress’ intent is unclear, the constitutional doubt cannon of

construction mandates that we read the statute to incorporate

the Teague exceptions to avoid the serious constitutional

problem raised by depriving individuals of bedrock principles

of Due Process. Ferguson v. Palmateer, 321 F.3d 820, 823

(9th Cir. 2003).

[10] The Nevada Supreme Court relied on Roberts to con-

clude that Autumn was “unavailable” and that her statements

bore the requisite “particularized guarantees of trustworthi-

ness.” Bockting v. State, 847 P.2d 1364, 1367-70 (Nev. 1993).

As we now know, but the Nevada Supreme Court could not

have divined, Crawford dictates the right to cross-examine the

witness. The progeny of Roberts, such as the multi-factor reli-

ability test developed in Idaho v. Wright, 497 U.S. 805, 821-

22 (9th Cir. 1990), cannot override the right of confrontation.

Thus, the Nevada Supreme Court’s decision was “contrary to”

established Supreme Court precedent in Crawford, as made

retroactive under Teague and Summerlin.

It bears noting that Crawford requires not only cross-

examination but unavailability. We have long acknowledged

the sensitive situation presented by the child witness. See,

BOCKTING v. BAYER 5899

e.g., Tome v. United States, 513 U.S. 150, 166 (1995). Indeed,

prosecutions for child abuse often rely heavily on such testi-

mony. Here, the trial court’s inquiry into Autumn’s unavaila-

bility was truncated and conclusory at best. When she refused

to cooperate, the court simply declared her unavailable.

Although this issue is troubling, it is not necessary to reach

this question because of the constitutional error related to the

lack of cross-examination.

[11] The final question is whether admission of Autumn’s

statement “had substantial and injurious effect or influence in

determining the jury’s verdict.” See Brecht v. Abrahamson,

507 U.S. 619, 623 (1993). The detective’s testimony regard-

ing Autumn’s interview was a critical piece of evidence, par-

ticularly in view of Autumn’s inconsistent testimony at the

preliminary hearing, and weaknesses in Laura Bockting’s tes-

timony. Even if Autumn’s statement to the mother was, for

argument’s sake, considered admissible, the detective’s

description of Autumn’s interview was so significant as cor-

roborating evidence that its admission had a substantial and

injurious effect or influence in determining the jury’s verdict.

Thus, the admission of Autumn’s statement requires reversal.

III. CONCLUSION

Because a majority concludes that Crawford must be

applied in this pending habeas case, Bockting’s petition for a

writ of habeas corpus is GRANTED.3

3

I join part II of Judge Wallace’s concurring and dissenting opinion

with respect to admission of prior misconduct, vouching, and ineffective

assistance of counsel.

5900 BOCKTING v. BAYER

NOONAN, Circuit Judge, concurring:

The trial court, the state supreme court, and the federal dis-

trict court believed that the statute was constitutional, the pro-

cedure followed to have been proper, and Bockting’s

conviction valid. It is now apparent that each of these courts

was mistaken and that the statute and the procedure under it

are unconstitutional. Crawford v. Washington, 124 S. Ct.

1354 (2004). Bockting is entitled to a writ of habeas corpus.

The misunderstanding of the law governing the case is com-

prehensible in the light of the history set out in Crawford;

nontestimonial hearsay is not subject to an absolute bar.

“Where testimonial evidence is at issue, however, the Sixth

Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination.”

Id. at 1374.

Autumn was not found to be as unavailable as a witness.

She was in fact present at the trial. At most, the Nevada courts

determined that Autumn was not willing to be a witness

against Bockting. The reasons for her unwillingness were not

explored. The possibility of measures short of appearance on

the stand in open court were not explored. The fact that she

had testified at Bockting’s preliminary hearing and had denied

the accusations against him was ignored. On the mere ipse

dixit of a prosecutor already disappointed by Autumn’s testi-

mony at the preliminary hearing, she was disqualified as a

witness and the hearsay introduced. The Confrontation Clause

of the Sixth Amendment to the Constitution of the United

States, applicable by virtue of the Fourteenth Amendment,

was violated.

No opportunity for cross-examination by Bockting ever

existed. He was, of course, not present when Autumn spoke

to her mother or when she spoke to Detective Zinovitch.

Totally untested by the method constitutionally required, the

two testimonial tales, retold by Laura and the detective, con-

fronted Bockting at his trial. The Confrontation Clause

BOCKTING v. BAYER 5901

demanded that he be confronted with the witness against him.

U.S. Const. amend. VI.

It is a work of supererogation to praise the wisdom of the

Founders and to celebrate the enforcement of a “bedrock pro-

cedural guarantee.” Crawford, 124 S. Ct. at 1359. Nonethe-

less, the circumstances of this case demonstrate how wise it

is to exclude testimony untested by cross-examination.

Autumn’s first declaration, reported only by her mother, was

made at night after Autumn awoke from sleep crying and was

questioned by her mother. It may have been an excited or

spontaneous utterance but one made under circumstances ren-

dering it less, not more credible. In her mother’s words, “She

looked like she had just woke up from a bad dream and she

was quite upset.” It is a commonplace phenomenon for people

of all ages to have nightmares and to awake in distress. What

they then say was bothering them carries no guarantee of

trustworthiness; they are coming out of sleep, still responding

to their sleeping state impressions. Autumn’s second declara-

tion was made to a police officer in the presence of her

mother; she was under psychological compulsion not to let

her mother down. As to her play with the dolls and her sexual

experience, her mother testified that Autumn had observed

her and Bockting having sexual intercourse in the one bed-

room trailer in which the family lived and where Autumn

slept in a closet area off the bedroom. The language Autumn

used in reference to the sexual organs was language her

mother testified that she used in discussion with her. Autumn

had no motive to accuse her stepfather of criminal assault and,

in fact, demonstrated affection for him; she did have a motive

to account for her nightmare and to tell the same story the sec-

ond time when she met the police.

Autumn’s statements were further put in doubt by her repu-

diation of any accusation against Bockting at his preliminary

hearing. Further, the report of her statement of her mother

must be contextualized by these facts: her mother was an

exotic dancer, who sometimes performed in front of Autumn;

5902 BOCKTING v. BAYER

her mother was in conflict with Bockting and on the brink of

leaving him; her mother did not report Autumn’s nighttime

declaration until two days after she said she heard it.

It is argued that to apply Crawford is to apply it retroac-

tively. To the contrary, the Supreme Court, after reviewing its

own decisions, declared:

Our cases have thus remained faithful to the Fram-

ers’ understanding: Testimonial statements of wit-

nesses absent from trial have been admitted only

where the declarant is unavailable, and only where

the defendant has had a prior opportunity to cross-

examine.

Crawford, 124 S. Ct. at 1369. Crawford, therefore, does not

announce a new rule. Retroactivity is not an issue.

True, the chief justice’s dissent declared that Crawford was

“a new interpretation” that overruled Ohio v. Roberts, 448

U.S. 56 (1980). Id. at 1374. But as the Court pointed out, Rob-

erts itself only admitted testimony that had been subjected to

cross-examination. Id. at 1368. Undoubtedly, a number of

courts misinterpreted the Confrontation Clause in the same

way as the Nevada courts did. But correction of a misinterpre-

tation does not create a new rule. It is dangerous to take liter-

ally a dissent. The authentic interpretation of what the Court

is doing comes from the Court itself. If there were any doubt

in this case (which I deny there is), it is completely dispelled

by the Court, again speaking through the author of Crawford

in the same term in which Crawford was decided. Addressing

new procedural rules without which the likelihood of an accu-

rate conviction is seriously diminished, the Court declared:

“This class of rules is extremely narrow and it is unlikely that

any . . . has yet to emerge.” Schriro v. Summerlin, 124 S. Ct.

2519, 2522 (2004) (quoting Tyler v. Cain, 533 U.S. 656, 667

n.7 (2001)) (alterations and quotation marks omitted). This

declaration is an authoritative determination, delivered less

BOCKTING v. BAYER 5903

than four months after Crawford, that Crawford’s bedrock

procedural rule was not a new rule. A change in rationale is

not treated by the Supreme Court as a change in rules. Craw-

ford, 124 S. Ct. 1369. All along, the bedrock was there.

As an alternative to the foregoing analysis and in order to

provide a precedent for this court, I also concur in Judge

McKeown’s analysis and opinion.

Because the action of the Nevada Supreme Court resulted

in a decision that was contrary to established federal law as

determined by the Supreme Court of the United States, 28

U.S.C. § 2254 (d)(l), the writ of habeas corpus should issue

to free Bockting from his unconstitutional confinement.

5904 BOCKTING v. BAYER

Volume 2 of 2

BOCKTING v. BAYER 5905

WALLACE, Senior Circuit Judge, concurring and dissenting:

Both Judges McKeown and Noonan conclude that the

Supreme Court’s recent landmark decision, Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), governs our

consideration of Bockting’s Confrontation Clause claim,

although for different reasons. While Judge Noonan would

hold that retroactivity is “not an issue” because Crawford did

not establish a “new rule” within the meaning of Teague v.

Lane, 489 U.S. 288 (1989), Ante at 5902, I concur with that

part of Judge McKeown’s opinion holding that Crawford

established a new rule that does not apply retroactively to

state convictions on habeas review unless it satisfies one of

two narrow exceptions. However, I do not agree that Craw-

ford fits within either of those exceptions. Guided by the prin-

ciples outlined in Schriro v. Summerlin, ___ U.S. ___, 124

S. Ct. 2519 (2004), I would hold that Crawford’s new proce-

dural rule does not qualify for retroactive application and

would analyze Bockting’s Confrontation Clause claim under

pre-Crawford jurisprudence. In doing so, I would reject that

claim, as well as Bockting’s remaining claims, under the def-

erential standards of review embodied in the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), and

affirm the district court’s denial of Bockting’s habeas petition.1

I therefore respectfully dissent.

I.

I consider first Bockting’s contention that the state trial

court violated his rights under the Confrontation Clause by

admitting Autumn’s out-of-court statements.

1

Judge McKeown concurs in part II of this opinion. See Ante at 5899

n.3. Therefore, a majority of the court agrees that Bockting’s challenges

to (a) the admission of evidence of prior misconduct, (b) vouching, and (c)

effective assistance of counsel, do not warrant habeas relief.

5906 BOCKTING v. BAYER

A.

Several weeks after this case was argued before us and sub-

mitted for decision, the Supreme Court issued Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Parting

ways with the constitutional test formulated in Ohio v. Rob-

erts, 448 U.S. 56 (1980), Crawford held that in criminal pro-

ceedings, “[t]estimonial statements of witnesses absent from

trial [are admissible] only where the defendant is unavailable,

and only where the defendant has had a prior opportunity to

cross-examine.” Crawford, 124 S. Ct. at 1369 (emphasis

added).

Bockting argues—and Judge Noonan agrees—that Craw-

ford does not raise retroactivity concerns at all because it does

not qualify as a “new rule” under Teague. Although the

Supreme Court took great pains to harmonize Crawford’s

result with previous Sixth Amendment decisions, I agree with

Judge McKeown that Crawford’s ratio decidendi effected a

clear and decisive break from prior precedent. See Crawford,

124 S. Ct. at 1369 (observing that “[a]lthough the results of

our decision have generally been faithful to the original mean-

ing of the Confrontation Clause, the same cannot be said of

our rationales”). Before Crawford, controlling precedent per-

mitted courts to admit hearsay evidence against a criminal

defendant whenever the declarant was “unavailable” and the

evidence had “adequate ‘indicia of reliability,’ ” i.e., fell

within a “firmly rooted hearsay exception” or bore “particu-

larized guarantees of trustworthiness.” Roberts, 448 U.S. at

66. Crawford, however, emphatically rejected Roberts’s

approach to testimonial evidence, arguing that its test demon-

strated an “unpardonable . . . capacity to admit core testimo-

nial statements that the Confrontation Clause plainly meant to

exclude.” 124 S. Ct. at 1371. As the Court in Crawford

explained:

[Roberts] is too broad: It applies the same mode of

analysis whether or not the hearsay consists of ex

BOCKTING v. BAYER 5907

parte testimony. This often results in close constitu-

tional scrutiny in cases that are far removed from the

core concerns of the Clause. At the same time, how-

ever, the test is too narrow: It admits statements that

do consist of ex parte testimony upon a mere finding

of reliability.

Id. at 1369. Responding to these concerns, the Court limited

Roberts’s reach to cases “[w]here nontestimonial hearsay is at

issue.” Id. at 1374. In cases involving “testimonial evidence,”

the Court replaced Roberts with a new test that has two

requirements: “unavailability and a prior opportunity for

cross-examination.” Id. Thus, since Crawford overruled Rob-

erts’s test for the admission of testimonial evidence, the deci-

sion also represents a “new rule” for retroactivity purposes.

See id. at 1378 (Rehnquist, C.J., concurring) (characterizing

the majority’s opinion as a “new rule”); Graham v. Collins,

506 U.S. 461, 467 (1993) (“[T]here can be no dispute that a

decision announces a new rule if it expressly overrules a prior

decision . . . .”); Teague, 489 U.S. at 301 (“[A] case

announces a new rule if the result was not dictated by prece-

dent existing at the time the defendant’s conviction became

final.”).

Crawford’s “new” constitutional rule would only apply

retroactively to final convictions on collateral review if it falls

within certain categories of rules. The Supreme Court recently

clarified the nature and scope of these categories in Summer-

lin:

New substantive rules generally apply retroactively.

This includes decisions that narrow the scope of a

criminal statute by interpreting its terms, as well as

constitutional determinations that place particular

conduct or persons covered by the statute beyond the

State’s power to punish. Such rules apply retroac-

tively because they “necessarily carry a significant

risk that a defendant stands convicted of ‘an act that

5908 BOCKTING v. BAYER

the law does not make criminal’ ” or faces a punish-

ment that the law cannot impose upon him.

New rules of procedure, on the other hand, gener-

ally do not apply retroactively. They do not produce

a class of persons convicted of conduct the law does

not make criminal, but merely raise the possibility

that someone convicted with use of the invalidated

procedure might have been acquitted otherwise.

Because of this more speculative connection to inno-

cence, we give retroactive effect to only a small set

of “ ‘watershed rules of criminal procedure’ impli-

cating the fundamental fairness and accuracy of the

criminal proceeding.”

124 S. Ct. at 2522-23 (citations omitted), quoting Bousley v.

United States, 523 U.S. 614, 620 (1998), and Saffle v. Parks,

494 U.S. 484, 495 (1990).

Measured against Summerlin’s standards, Crawford is best

classified as a procedural rule. The rule does not “narrow the

scope of a criminal statute by interpreting its terms”; nor does

it “place particular conduct or persons covered by the statute

beyond the State’s power to punish.” Id. at 2522. Rather, by

renegotiating the boundaries between admissible and inadmis-

sible evidence, Crawford operates solely on a defendant’s

criminal proceedings. Crawford’s characterization as a proce-

dural rule is further supported by the Crawford decision itself.

By labeling the Confrontation Clause as “a procedural rather

than a substantive guarantee . . . [that] reflects a judgment . . .

about how reliability [of testimonial evidence] can best be

determined,” the Court endeavored to reinstitute “the constitu-

tionally prescribed method of assessing reliability.” Crawford,

124 S. Ct. at 1370 (emphasis added). While, the line between

“substance” and “procedure” may not always be crystal-clear,

there can be no serious dispute that Crawford’s restriction on

testimonial evidence is a “procedural” rule.

BOCKTING v. BAYER 5909

Bockting contends that Crawford merits retroactive appli-

cation here because it is a “ ‘watershed rule[ ] of criminal pro-

cedure’ implicating the fundamental fairness and accuracy of

the criminal proceeding.” Saffle, 494 U.S. at 495, citing

Teague, 489 U.S. at 311; see also Teague 489 U.S. at 307

(describing this exception as applying to “those procedures

that . . . are implicit in the concept of ordered liberty” (quot-

ing Palko v. Connecticut, 302 U.S. 319, 325 (1937))). This

argument—which Judge McKeown finds persuasive—

admittedly has some intuitive appeal; as Bockting observes,

the Supreme Court has described “the Sixth Amendment’s

right of an accused to confront the witnesses against him” as

“fundamental,” Pointer v. Texas, 380 U.S. 400, 403 (1965),

and Crawford purports to effectuate the Confrontation

Clause’s original design and thereby enhance the fairness and

accuracy of defendants’ criminal proceedings. Crawford, 124

S. Ct. at 1373. However, the fact that Crawford is “ ‘funda-

mental’ in some abstract sense is not enough” to entitle Bock-

ting to habeas relief. Summerlin, 124 S. Ct. at 2523. Under

Teague and its progeny, Crawford does not constitute a “wa-

tershed rule” suitable for retroactive application unless the

Roberts test “so ‘seriously diminishe[s]’ accuracy that there is

an ‘impermissibly large risk’ of punishing conduct the law

does not reach.” Id. at 2525, quoting Teague, 489 U.S. at 312-

13; see also id. at 2523 (“This class of rules is extremely nar-

row, and ‘it is unlikely that any . . . ha[s] yet to emerge.’ ”

(quoting Tyler v. Cain, 533 U.S. 656, 667 n.7 (2001)) (inter-

nal quotation marks and citation omitted)).

In evaluating the Roberts test, the Supreme Court’s analysis

in Summerlin is instructive. The question presented there was

whether Ring v. Arizona, 536 U.S. 584 (2002), the Court’s

decision that juries must determine the existence of any

aggravating factor necessary for imposition of the death pen-

alty, applied retroactively to cases already final on direct

review. In assessing whether Ring represented a true “water-

shed” procedural rule, the court reviewed scholarly commen-

tary relating to the accuracy of judicial factfinding and

5910 BOCKTING v. BAYER

concluded that the evidence was “simply too equivocal” to

justify Ring’s retroactive application: “[w]hen so many pre-

sumably reasonable minds continue to disagree over whether

juries are better factfinders . . . , we cannot confidently say

that judicial factfinding seriously diminishes accuracy.” Sum-

merlin, 124 S. Ct. at 2525. The Court also stressed that this

conclusion followed logically from its observation in DeSte-

fano v. Woods, 392 U.S. 631 (1968) (per curiam), “that,

although ‘the right to jury trial generally tends to prevent arbi-

trariness and repression[,] . . . [w]e would not assert . . . that

every criminal trial—or any particular trial—held before a

judge alone is unfair or that a defendant may never be as

fairly treated by a judge as he would be by a jury.’ ” Summer-

lin, 124 S. Ct. at 2525, quoting DeStefano, 392 U.S. at 633-34

(internal quotation marks omitted). The Court reasoned that if

“a trial held entirely without a jury was not impermissibly

inaccurate, it is hard to see how a trial in which a judge finds

only aggravating factors could be.” Id. at 2526. Summerlin

thus did not extend Ring retroactively to cases on habeas

review notwithstanding the Court’s recognition that “[t]he

right to jury trial is fundamental to our system of criminal

procedure.” Id.

Although Summerlin does not directly control the outcome

of this case, the close similarities between the two cases are

compelling. As in Summerlin, there is no clear consensus over

the comparative effects Roberts and Crawford might have on

the accuracy of jury verdicts, see Crawford, 124 S. Ct. at

1377-78 (Rehnquist, C.J., concurring), much less any evi-

dence that Roberts “so ‘seriously diminishe[s]’ accuracy that

there is an ‘impermissibly large risk’ of punishing conduct the

law does not reach,” Summerlin, 124 S. Ct. at 2525, quoting

Teague, 489 U.S. at 312-13. Nor am I prepared to assert that

all testimonial hearsay evidence admitted without the oppor-

tunity for cross-examination necessarily renders a criminal

trial “impermissibly inaccurate,” id. at 2526, or otherwise

“unfair,” id. at 2525, quoting DeStefano, 392 U.S. at 634.

Even assuming Crawford’s reinterpretation of the Confronta-

BOCKTING v. BAYER 5911

tion Clause is in some sense “fundamental” and accuracy-

enhancing, it does not follow that “[t]he values implemented

by [that] right . . . would . . . measurably be served by requir-

ing retrial of all persons convicted in the past by procedures

not consistent with the Sixth Amendment right” as it is cur-

rently understood. Summerlin, 124 S. Ct. at 2525-26, quoting

DeStefano, 392 U.S. at 634. There is simply no solid evidence

that Roberts has so seriously undermined the accuracy of

criminal proceedings as to discredit the host of final convic-

tions generated pursuant to its authority.

Judge McKeown, however, concludes that Crawford is

retroactive, because “the evidence that cross-examination

seriously decreases the possibility of inaccurate conviction is

unequivocal.” Ante at 5890-91. In her view, “Crawford itself

answers the question of whether the absence of cross-

examination “so seriously diminishe[s] accuracy that there is

an impermissibly large risk of punishing conduct the law does

not reach.” Ante at 5880, quoting Summerlin, 124 S. Ct. at

2525. But that is the wrong question. Prior to Crawford,

courts may not have been required to exclude an unavailable

witness’s out-of court testimonial statement that was not was

subject to cross-examination, but they were required to

exclude statements that did not have “adequate indicia of reli-

ability.” Roberts, 448 U.S. at 66. Thus, the question is not

whether testimony that has been subject to cross-examination

is more likely to be reliable than testimony that has not.

Rather, the question is whether testimony admissible under

Roberts is so much more unreliable than that admissible under

Crawford that the Crawford rule is “one without which the

likelihood of an accurate conviction is seriously diminished.”

Summerlin, 124 S. Ct. at 2523 (internal quotation marks omit-

ted).

The Supreme Court’s decision in Sawyer v. Smith, 497 U.S.

227 (1990) illustrates the principle that a new rule qualifies as

a “watershed rule[ ] of criminal procedure,” Teague, 489 U.S.

at 311, only if it represents a substantial improvement over

5912 BOCKTING v. BAYER

the previously existing rule. In Sawyer, the Court addressed

the question whether a habeas petitioner could claim the bene-

fit of Caldwell v. Mississippi, 472 U.S. 320 (1985), which was

decided after the petitioner’s conviction became final and

which “held that the Eighth Amendment prohibits the imposi-

tion of a death sentence by a sentencer that has been led to the

false belief that the responsibility for determining the appro-

priateness of the defendant’s capital sentence rests else-

where.” Sawyer, 497 U.S. at 233. After concluding that

Caldwell established a “new rule,” id. at 233-41, the Court

addressed whether Caldwell fit within either of Teague’s

exceptions. But, in addressing whether Caldwell qualified as

a “ ‘watershed rule[ ] of criminal procedure,’ ” id. at 241,

quoting Saffle, 494 U.S. at 495, the Court did not simply ask

whether sentences imposed in violation of Caldwell were

much less accurate than those imposed in compliance with

Caldwell. Rather, the Court compared Caldwell against “the

rule of [Donnelly v. DeChristoforo, 416 U.S. 637 (1974),

which] was in place [at the time of the petitioner’s trial and

appeal] to protect any defendant who could show that a prose-

cutor’s remarks had in fact made a proceeding fundamentally

unfair.” Sawyer, 497 U.S. at 243. Although the Court’s “con-

cern in Caldwell was with the ‘unacceptable risk’ that mis-

leading remarks could affect the reliability of the sentence,”

Caldwell had merely been “added to an existing guarantee of

due process protection against fundamental unfairness.” Id. at

244. Thus, the Court in Sawyer could not say that Caldwell’s

“systemic rule enhancing reliability is an ‘absolute prerequi-

site to fundamental fairness,’ of the type that may come

within Teague’s second exception.” Id., quoting Teague, 489

U.S. at 314.

Here, too, Crawford’s new rule must be judged against the

background in which it was decided, by comparing it to the

rule of Roberts. Although certain language in Judge Mc-

Keown’s opinion suggests that she purports to do so, see Ante

at 5893-94 (“The difference between pre- and post-Crawford

Confrontation Clause jurisprudence is not the sort of change

BOCKTING v. BAYER 5913

that can be dismissed as merely incremental.”), she never

actually asks the question upon which Crawford’s retroactiv-

ity turns: Does the admission of testimony which has been

judicially determined to bear “adequate indicia of reliability”

(as Roberts required), but which has not necessarily been sub-

ject to cross-examination (as Crawford requires), “so seri-

ously diminish[ ] accuracy that there is an impermissibly large

risk of punishing conduct the law does not reach”? Summer-

lin, 124 S. Ct. at 2525 (internal quotation marks omitted). As

explained above, the answer to that question should not be in

the affirmative.

Yet another flaw in Judge McKeown’s analysis is her focus

on language in Crawford suggesting that the new rule

announced in that case is truer to the Framers’ design. For

example, she quotes the Court’s statement that “[t]he Framers

would be astounded to learn that ex parte testimony could be

admitted against a criminal defendant because it was elicited

by ‘neutral’ government officers.” Crawford, 124 S. Ct. at

1373. See Ante at 5890. “The question here is not, however,

whether the Framers believed that [cross-examination pro-

vides a] more accurate [means of testing the reliability of tes-

timony] than [judicial determinations of ‘reliability’ pursuant

to Roberts],” but “whether [the Roberts test] so seriously

diminishe[s] accuracy that there is an impermissibly large risk

of punishing conduct the law does not reach.” Summerlin, 124

S. Ct. at 2525 (internal quotation marks omitted). That the

Framers made a particular judgment about the best way to

ensure the reliability of testimony does not mean that any rule

other than the one they envisioned creates an impermissibly

high risk of inaccurate conviction.

The focus of Justice Scalia’s analysis in Crawford was on

Roberts’ fidelity to the Framers’ intentions, rather than the

accuracy of convictions obtained under the Roberts regime.

See, e.g., Crawford, 124 S. Ct. at 1359 (“Petitioner argues that

[the Roberts] test strays from the original meaning of the Con-

frontation Clause and urges us to reconsider it.”); id. at 1369

5914 BOCKTING v. BAYER

(“Although the results of our decisions have generally been

faithful to the original meaning of the Confrontation Clause,

the same cannot be said of our rationales.”); id. at 1370

(“Where testimonial statements are involved, we do not think

the Framers meant to leave the Sixth Amendment’s protection

to the vagaries of the rules of evidence, much less to amor-

phous notions of ‘reliability.’ ”). True, the Court stated that

“[t]he [Confrontation] Clause . . . reflects a judgment . . .

about how reliability can best be determined,” id. at 1370; that

“[t]he legacy of Roberts in other courts vindicates the Fram-

ers’ wisdom in rejecting a general reliability exception,” id. at

1371; and even that “[r]eliability is an amorphous, if not

entirely subjective, concept.” Id. But, even if one assumes that

the Framers were correct as an empirical matter that cross-

examination is the best way to ensure the reliability of testi-

mony, that does not mean that any other method impermiss-

ibly threatens punishing the innocent.

Finally, Judge McKeown’s analysis is contrary to that of

three other circuits that have held that Crawford’s rule does

not fit within either of Teague’s exceptions. See Brown v.

Uphoff, 381 F.3d 1219, 1225-27 (10th Cir. 2004); Evans v.

Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004); Mungo v.

Duncan, 393 F.3d 327, 335-36 (2d Cir. 2004). Although

Judge McKeown criticizes Brown on the ground that “[t]he

Tenth Circuit mistakenly concluded that rules of constitu-

tional law subject to harmless error review can never be con-

sidered bedrock rules of procedure,” see Ante at 5896, that

attack is not well-founded. Our own decision in United States

v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002), which

held that Apprendi v. New Jersey, 530 U.S. 466 (2000) does

not apply retroactively, employed the very reasoning that

Judge McKeown finds objectionable. See Sanchez-Cervantes,

282 F.3d at 670 (“By applying harmless error analysis or

plain error review to Apprendi claims, we have necessarily

held that Apprendi errors do not render a trial fundamentally

unfair. Therefore, it would seem illogical to hold that such an

error is a watershed rule that ‘implicate[s] the fundamental

BOCKTING v. BAYER 5915

fairness of the trial’ ” (quoting Teague, 489 U.S. at 312) (foot-

note omitted)). The Tenth Circuit’s reasoning in Brown is

entirely consistent with our own in Sanchez-Cervantes, and

provides yet another reason why Judge McKeown’s analysis

is unpersuasive.

For the foregoing reasons, I conclude that Crawford does

not qualify as a “watershed rule[ ] of criminal procedure”

appropriate for retroactive application to convictions already

final on direct review. Teague, 489 U.S. at 311. Like the Sec-

ond Circuit in Mungo, see 393 F.3d at 334-35, and unlike

Judge McKeown, see Ante at 5897-98, I therefore would not

reach the question whether AEDPA “nullifies” the Teague

exceptions, such that no “new rule”—even one fitting within

one of those exceptions—may serve as the basis for habeas

relief.

Nonetheless, to determine whether I can concur in the

result, I must evaluate Bockting’s Confrontation Clause claim

according to the standards articulated in Roberts and our own

pre-Crawford decisions.

B.

Because Judge McKeown’s opinion does not get to the

application of pre-Crawford law to Bockting’s Confrontation

Clause claim, it was not necessary for her to go into detail

regarding the facts of this case that are relevant to such analy-

sis, therefore I add them here.

At Bockting’s March 30, 1988, preliminary hearing, Laura

described Autumn’s abuse allegations and other events lead-

ing up to Bockting’s arrest. Prosecutors then called Autumn

to the stand. Autumn testified that she knew the difference

between the truth and a lie and answered preliminary ques-

tions about the alleged assault and subsequent rape examina-

tion. As the prosecutor probed more deeply into the details of

Bockting’s alleged assault, Autumn began to cry and averred

5916 BOCKTING v. BAYER

that she could not remember basic facts such as what occurred

in the bathroom with her father and whether she discussed her

father’s alleged assault with Detective Zinovitch. The judge

asked Laura to take a seat next to Autumn on the witness

stand, and Laura encouraged Autumn to “be honest” and “tell

the truth.” Responding that “[y]ou already told them,”

Autumn refused to answer any further questions. The judge

declared Autumn unavailable as a witness.

Bockting’s jury trial commenced on August 15, 1988. The

government, represented by Deputy District Attorney John

Lukens, called Autumn as its first witness. The trial transcript

reads as follows:

The Court: Very good then. Mr. Lukens, your

first witness.

Mr. Lukens: Autumn Bockting.

* * *

The Court: How are you doing, Autumn?

Autumn, you okay? All right. Contin-

uation of case C83110, State of

Nevada versus Marvin Howard

Bockting. The record will reflect the

presence of defendant; his counsel,

Mr. Blaskey; Mr. Lukens represent-

ing the State[;] the absence of the

jury. And we have on the stand

Autumn Jean Tresler Bockting.

All right. Go ahead, counsel.

Mr. Lukens: Autumn, this is when you have to

stand up to be sworn.

The Court: Can you stand up, Autumn? Can you

stand up and raise your hand for me?

BOCKTING v. BAYER 5917

Autumn, stand up now and raise your

hand for us, okay.

Mr. Lukens: Your Honor, I think under these con-

ditions, I think that the witness is

unable to testify.

The Court: Well, I think it is apparent without

the jury if we can’t get anything more

than this, it is not likely when the

jury is here we will do any better. Go

ahead and assist, will you please.

Counsel approach the bench,

please.

(Discussion at the bench which

was not reported.)

Mr. Lukens: Your Honor, at this time since the

Court has observed for itself the

inability of Autumn Bockting to tes-

tify due to the emotional conflict that

goes on within her, the State intends

pursuant to [Nevada Revised Statute]

51.385 to offer into evidence the

statements made by Autumn Bock-

ting to both her mother, Laura, and

Detective Zinovitch and, to a more

limited extent, Diane Donovan.

This offer is made pursuant to

[Nevada Revised Statute] 51.385

which states in pertinent part that, “In

addition to any other provision for

admissibility, a statement made by a

child under the age of 10 years,

describing any act of sexual conduct

5918 BOCKTING v. BAYER

performed with or on the child, is

admissible in a criminal proceeding

regarding that sexual conduct if, A,

the Court finds in hearing outside the

presence of the jury that the time,

content and circumstances of the

statement provides sufficient circum-

stantial guarantees of trustworthiness,

and, B, the child testifies at the pro-

ceeding or is unavailable or unable to

testify.” I submit that portion B has

been met.

And, in addition, under [the provi-

sion formerly designated] Subsection

[2], it says, “If the child is unavail-

able or unable to testify, written

notice must be given to the defendant

10 days before the trial if the prose-

cution intends to offer the statements

in evidence.”

I would submit that the State has

complied with that and that such

notice was filed on August 2nd, 1988

and is styled Notice Pursuant to

[Nevada Revised Statute] 51.385

wherein I gave notice of the three

individuals who I intend to call as to

Autumn’s statements.

The Court: Very well. . . .

After hearing testimony from Laura and Detective

Zinovitch outside the presence of the jury, the judge con-

cluded that Autumn’s hearsay statements were admissible

under Nevada Revised Statutes 51.385 because Autumn was

effectively unavailable for questioning:

BOCKTING v. BAYER 5919

The very purpose of this statute was to avoid the

problem we have here today where a little girl either

is not willing to testify or for some reason is unable

to or testifies in such an inconsistent manner that it

means, in essence, that their testimony is worthless;

and because of the fact that she is testifying in open

court in front of strangers with all the things that sur-

rounds that kind of a setting. . . . The little girl is

obviously unavailable. And as far as these two state-

ments, I am meaning the one to the mother and the

one to Detective Zinovitch, I think they are allowed

—they are credible enough to be allowed to be

related to the jury.

Roberts outlines two preconditions for the introduction of

out-of-court statements against a criminal defendant. First, the

government must establish the declarant’s “unavailability” to

testify as a witness at trial. Bains v. Cambra, 204 F.3d 964,

973 (9th Cir. 2000), citing Roberts, 448 U.S. at 65-66. Sec-

ond, the government must demonstrate that the hearsay state-

ments bear “adequate indicia of reliability” by showing that

they either fall “within a firmly rooted hearsay exception” or

contain “particularized guarantees of trustworthiness.” Rob-

erts, 448 U.S. at 65-66. In Bockting’s state proceedings, the

Nevada Supreme Court determined that the government satis-

fied these two requirements, see Bockting v. State, 847 P.2d

1364, 1366-70 (Nev. 1993) (per curiam), and Bockting chal-

lenges these determinations on federal habeas review. Mind-

ful of a federal court’s duty to defer to the state supreme

court’s factual determinations and reasonable applications of

Supreme Court precedent, 28 U.S.C. § 2254(d)(1)-(2), I con-

sider each Roberts requirement in turn.

1.

Bockting first asserts that the Nevada Supreme Court’s

decision is not entitled to deference under AEDPA because

the court failed to review whether Autumn was available to

5920 BOCKTING v. BAYER

testify at trial. The record does not support this characteriza-

tion of the state supreme court’s findings. When Autumn

refused to cooperate as a trial witness, the prosecution moved

to introduce her hearsay statements through the testimony of

her mother, Detective Zinovitch, and Doctor Donovan pursu-

ant to Nevada Revised Statute 51.385, which provides for the

introduction of a child’s hearsay statements if they are “un-

available or unable to testify.” NEV. REV. STAT. 51.385.

Before granting the prosecution’s motion, the trial court made

a clear, particularized finding that Autumn’s refusal to coop-

erate on the stand had rendered her “obviously unavailable.”

The Nevada Supreme Court, while observing that Nevada

Revised Statute 51.385 “does not require the unavailability of

a hearsay declarant as a prerequisite to the admissibility of the

declarant’s statements,” nonetheless explicitly affirmed the

trial court’s determination “that the child was unavailable as

a witness.” Bockting, 847 P.2d at 1366 n.4; see also NEV. REV.

STAT. 51.385 (allowing the introduction of hearsay statements

when “[t]he child testifies at the proceeding” in addition to

when the child “is unavailable or unable to testify”). I would

therefore reject Bockting’s argument that the state supreme

court’s unavailability determination is not entitled to defer-

ence because the trial court failed to ascertain whether

Autumn was available to testify at trial.

A more difficult question is whether the Nevada Supreme

Court’s substantive unavailability determination was “con-

trary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1). In past deci-

sions, the Supreme Court has not found it necessary to decide

whether a child witness is “unavailable” for Confrontation

Clause purposes when the child is merely emotionally or

developmentally incapable of testifying in that forum. See

Idaho v. Wright, 497 U.S. 805, 815-16 (1990). As a general

matter, however, the Court held in Roberts that “a witness is

not ‘unavailable’ . . . unless the prosecutorial authorities have

made a good-faith effort to obtain [her] presence at trial.”

BOCKTING v. BAYER 5921

Roberts, 448 U.S. at 75, quoting Barber v. Page, 390 U.S.

719, 724-25 (1968) (emphasis added).

Seizing on Roberts’s good faith requirement, Bockting

makes a plausible argument that child witnesses who refuse

to testify in a courtroom setting should not be considered “un-

available” unless the government first makes a good-faith

attempt to secure their testimony through closed circuit televi-

sion or some other medium amenable to cross-examination. I

need not consider the merits of Bockting’s proposal, however,

because my task here is not to decide what might be best;

instead, my review is limited to whether the Nevada Supreme

Court’s application of Roberts was unreasonable. See 28

U.S.C. § 2254(d). On its face, Roberts requires no more than

“a good-faith effort to obtain [a witness’s] presence at trial,”

Roberts, 448 U.S. at 75 (emphasis removed), quoting Barber,

390 U.S. at 724-25, and the government arguably satisfied

this requirement here by (1) securing Autumn’s physical

“presence” at trial and (2) making “a good-faith effort” to

elicit her testimony in that forum.

The Supreme Court’s more recent decisions dealing with

alternative procedures for obtaining trial testimony do not

materially advance Bockting’s habeas petition. Although the

Supreme Court has permitted states to substitute one-way

closed circuit television for in-court child testimony under

certain circumstances, see Maryland v. Craig, 497 U.S. 836,

855 (1990), it has never intimated that the Constitution

requires the government to attempt such alternative proce-

dures as a precondition for an unavailability finding. Cf.

Wright, 497 U.S. at 818 (“Out-of-court statements made by

children regarding sexual abuse arise in a wide variety of cir-

cumstances, and we do not believe the Constitution imposes

a fixed set of procedural prerequisites to the admission of

such statements at trial.”). To the contrary, the Court has

emphatically rejected the assertion that Craig, 497 U.S. at

855, and United States v. Coy, 487 U.S. 1012, 1021 (1988),

require the government to demonstrate “necessity” before

5922 BOCKTING v. BAYER

introducing pretrial hearsay statements. See White v. Illinois,

502 U.S. 346, 358 (1992) (“There is . . . no basis for import-

ing the ‘necessity requirement’ announced in [Craig and Coy]

into the much different context of out-of-court declarations

. . . .”). I would hold, therefore, that the Nevada Supreme

Court’s failure to insist upon alternative procedures for pro-

curing Autumn’s contemporaneous testimony did not involve

an unreasonable application of Roberts, Craig, or Coy.

Setting aside Bockting’s assertions of legal error, I must

decide whether the Nevada Supreme Court’s unavailability

finding “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court pro-

ceeding.” 28 U.S.C. § 2254(d)(2); see also Taylor v. Maddox,

366 F.3d 992, 999 (9th Cir. 2004) (holding that subsection

2254(d)(2) “applies . . . to situations where petitioner chal-

lenges the state court’s findings based entirely on the state

record”). Under this deferential standard of review, I may not

“determine that the state-court factfinding process is defective

in some way” unless I am “ satisfied that any appellate court

to whom the defect is pointed out would be unreasonable in

holding that the state court’s fact-finding process was ade-

quate.” Taylor, 366 F.3d at 1000.

The record does not support Bockting’s claim that the

Nevada Supreme Court’s reliance on the trial court’s

unavailability finding “was based on an unreasonable deter-

mination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(2); see also Gill

v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) (explaining

that when a state supreme court summarily adopts a lower

court’s finding of fact “we look through the unexplained . . .

decision to the last reasoned decision . . . as the basis for the

state court’s judgment” (internal quotation marks, brackets,

and citation omitted)). At Bockting’s preliminary hearing,

Autumn initially responded to the prosecution’s inquiries with

incomplete or evasive answers, then quickly broke into tears

and refused to answer any further questions. Efforts to elicit

BOCKTING v. BAYER 5923

her testimony at trial were even less fruitful, as she refused so

much as to stand or to raise her hand to be sworn in as a wit-

ness. The trial transcript does not paint a detailed portrait of

Autumn’s demeanor on the latter occasion, but there are

strong hints that Autumn was distraught and uncommunica-

tive from the start, leading the state trial court to conclude that

there was no use pursuing further questioning before the jury.

I therefore am not “convinced that an appellate panel, apply-

ing the normal standards of appellate review, could not rea-

sonably conclude” that Autumn was emotionally incapable of

testifying at trial. Taylor, 366 F.3d at 1000. To the contrary,

deference to state courts is particularly appropriate in a case

such as this, where findings of fact turn on a trial court’s eye-

witness evaluation of a child witness’s demeanor. Cf. Wain-

wright v. Witt, 469 U.S. 412, 428 (1985) (“[D]eterminations

of demeanor . . . . [are] entitled to deference even on direct

review; ‘[t]he respect paid such findings in a habeas proceed-

ing should be no less.’ ” (quoting Patton v. Yount, 467 U.S.

1025, 1038 (1984))). As Bockting did not present any evi-

dence in federal district court to challenge the state trial

court’s findings, I presume that the trial court’s findings are

correct. See 28 U.S.C. § 2254(e)(1); Taylor, 366 F.3d at 1000

(“Once the state court’s fact-finding satisfies this intrinsic

review [on the record,] . . . the state court’s findings are

dressed in a presumption of correctness . . . .”).

In sum, Bockting has not established that the Nevada

Supreme Court’s unavailability determination was “contrary

to, or involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court of

the United States,” 28 U.S.C. § 2254(d)(1), or “was based on

an unreasonable determination of the facts in light of the evi-

dence presented in the State court proceeding,” id.

§ 2254(d)(2).

2.

Turning to Roberts’s “adequate indicia of reliability”

requirement, the Nevada Supreme Court acknowledged that

5924 BOCKTING v. BAYER

Autumn’s hearsay statements did not fit within any “firmly

rooted hearsay exception” but held that her statements bore

the requisite “particularized guarantees of trustworthiness” for

admission under Roberts. Bockting, 847 P.2d at 1367-70.

Applying the multifactor test outlined in Wright, 497 U.S. at

821-22, the court identified several circumstances which, in

its view, buttressed the “trustworthiness” of Autumn’s abuse

allegations, including: (1) the “spontaneity and consistent rep-

etition” of her statements, (2) the “agitation and fear” before

first recounting the experience to her mother as evinced by

“the fact that she was visibly shaken and crying,” (3) her

apparent “knowledge of sexual conduct not present in most

children six years of age,” (4) her “child-like terminology”

which “was reflective of candor rather than coaching,” and (5)

her “display of affection for Bockting . . . indicative of love

rather than hate.” Bockting, 847 P.2d at 1369.

Bockting argues that the Nevada Supreme Court evaluated

the trustworthiness of Autumn’s statements based on an

unreasonable application of Supreme Court precedent,

because it mistakenly interpreted Wright to prohibit consider-

ation of any evidence that did not support trustworthiness.

Wright held that in evaluating whether a declarant’s statement

bears “ ‘particularized guarantees of trustworthiness[,]’ . . .

relevant circumstances include only those that surround the

making of the statement,” not evidence corroborating the sub-

stance of a declarant’s hearsay statements (e.g., physical evi-

dence of sexual abuse). Wright, 497 U.S. at 819 (emphasis

added). Although Wright did not decide whether courts may

consider noncorroborating evidence that refutes the substance

of a declarant’s statements (e.g., physical evidence contradict-

ing an accuser’s abuse allegations), see Swan v. Peterson, 6

F.3d 1373, 1381 (9th Cir. 1993)—an issue not before us here

—the Court’s reasoning strongly suggests that courts must at

least consider any circumstances surrounding the making of

an out-of-court statement that challenge the statement’s trust-

worthiness (e.g., inconsistencies, motives to fabricate). See

Wright, 497 U.S. at 825-27; Webb v. Lewis, 44 F.3d 1387,

BOCKTING v. BAYER 5925

1392 (9th Cir. 1994) (holding that Wright “does not forbid

recourse to other evidence that confirms the presumptive

unreliability of the hearsay”); Swan, 6 F.3d at 1381 n.7 (rea-

soning in dicta that “[b]ecause Wright holds that the consis-

tency of a child witness’s allegations bears on the reliability

of an initial hearsay statement, arguably a later inconsistent

statement should also be evaluated in making the reliability

determination”).

I need not decide, however, if a categorical refusal to con-

sider evidence challenging the trustworthiness of Autumn’s

out-of-court statements would constitute an objectively unrea-

sonable application of Wright, for the record does not support

Bockting’s assertion that the Nevada Supreme Court “explic-

itly refused to consider evidence” establishing the unreliabil-

ity of Autumn’s accusations in this case. Footnote 8 of the

state supreme court’s opinion characterizes Wright as exclud-

ing “corroborative evidence . . . in determining the reliability

of hearsay statements” and hypothesizes that Wright might

require courts “to exclude evidence of marital discord on the

part of the parents as a possible motive in the mother for hav-

ing the child fabricate charges of sexual abuse against the hus-

band.” Bockting, 847 P.2d at 1369 n.8. Although these

statements suggest the court might have misinterpreted

Wright to some degree, they do not clearly establish that the

court misapplied Wright in this case by refusing to consider

critical, admissible evidence such as the marital discord

between Bockting and Laura. In the body of its opinion, the

court stated it reached its trustworthiness determination based

on “the totality of the circumstances surrounding the child’s

out-of-court statements” and asserted that “[n]either the [five]

factors [listed above] nor any other aspect of the record evi-

dence provides insights into a motive for dissembling on the

part of the child.” Id. at 1369-70 (emphasis added). True, the

court did not expressly discuss the Bocktings’ marital discord

and certain other evidence damaging to the trustworthiness of

Autumn’s statements, but it did refer to Laura’s testimony that

Autumn “had seen adult sexual organs in the past, had show-

5926 BOCKTING v. BAYER

ered with both her mother and Bockting, and had seen her

mother and stepfather having intercourse after entering the

bedroom unnoticed by the adults.” Id. at 1369 n.7. Given the

Nevada Supreme Court’s assertion that it considered all the

“record evidence” in assessing Bockting’s claims, it would

appear that its “totality of the circumstances” analysis did, in

fact, embrace the Bocktings’ marital problems and other rele-

vant circumstances surrounding Autumn’s out-of-court state-

ments. I would thus reject Bockting’s contention that the

Nevada Supreme Court unreasonably applied Wright’s restric-

tions on corroborating evidence.

The ultimate determination “[w]hether [Autumn’s] hearsay

statements were sufficiently reliable to be admitted without

violating [Roberts] is a mixed question” of law and fact,

Swan, 6 F.3d at 1379, so I review the Nevada Supreme

Court’s reliability determination to ascertain whether it “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1); see also

Davis v. Woodford, 333 F.3d 982, 990 (9th Cir. 2003) (stating

that subsection 2254(d)(1) applies “to mixed questions of law

and fact” (citing Williams v. Taylor, 529 U.S. 362, 407-09

(2001)). To the extent the Nevada Supreme Court’s “particu-

larized guarantees of trustworthiness” rest on findings of fact,

I must decide whether the determination “was based on an

unreasonable determination of the facts in light of the evi-

dence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2).

Bockting argues that neither the spontaneity and emotional

intensity of Autumn’s allegations nor her apparent lack of

motive to fabricate are indicative of truthfulness, because they

can easily be explained away by one of two alternative theo-

ries. First, he observes that Autumn delivered her original

abuse account shortly after arising from sleep and contends

that she could have been recounting a fantastical nightmare.

This “nightmare” theory is entirely speculative and appears

BOCKTING v. BAYER 5927

implausible given the graphic specificity of Autumn’s allega-

tions. Second, Bockting posits that Laura might have fabri-

cated the abuse allegations herself and coached Autumn

through the police interviews. Like the “nightmare” theory,

this “coaching” theory is utterly unsubstantiated by the

record, and it fails to account for Autumn’s spontaneous use

of dolls to describe the assault during her interview with

Zinovitch and the child-like terminology Autumn used to

describe her abuse. See Bockting, 847 P.2d at 1368. Because

Bockting’s speculation and conjecture do not establish that

the Nevada Supreme Court’s factual findings were “unreason-

able” with respect to Autumn’s spontaneity, mental state, and

motive, 28 U.S.C. § 2254(d)(2), I presume these findings are

correct, id. § 2254(e)(1). See Taylor, 366 F.3d at 1000.

Somewhat more compelling is Bockting’s challenge to the

Nevada Supreme Court’s reliance on Autumn’s “knowledge

of sexual acts that a child of six would not usually be aware

of absent personal experience.” Bockting, 847 P.2d at 1369.

Laura conceded at trial that Autumn had seen adult sexual

organs, had showered with each of her parents, had watched

her mother practice exotic dancing, and had observed her par-

ents engaging in sexual intercourse after entering the bedroom

unnoticed. Bockting elaborated on Laura’s testimony, alleging

that Autumn had witnessed her parents engage in oral sex and

was herself “interested” in sex. For these reasons alone, the

state supreme court had reason to suspect that Autumn’s

familiarity with adult sexual acts would exceed that of the

average six-year-old. On the other hand, the state supreme

court concluded that the testimony of Autumn’s parents did

not adequately account for Autumn’s ability to “demon-

strate[ ] through the use of the dolls the positions that would

have been necessary for the acts to take place between a large

adult male and a small female child” and to describe “how she

held onto the [bathroom] sink while Bockting was behind her

and ‘would press real hard and it hurt.’ ” Id. The substance of

Autumn’s allegations disclosed knowledge of sexual acts

gained from direct personal experience, not remote observa-

5928 BOCKTING v. BAYER

tion. Thus, it was not unreasonable for the state supreme court

to find, as it did, that Autumn’s prior exposure to adult sexual

acts did not adequately explain her familiarity with the spe-

cific acts described in her abuse allegations.

Arguably the weakest link in the Nevada Supreme Court’s

“particularized guarantees of trustworthiness” determination

is its finding that “sufficient . . . consistent repetition existed

in [Autumn’s] various statements.” Id. Autumn’s abuse alle-

gations to her mother and Detective Zinovitch were substan-

tially identical, so it was not unreasonable for the state

supreme court to conclude that Autumn’s “restatement of her

travails [to Detective Zinovitch] was consistent with the

details she had previously told to her mother.” Id. at 1368. On

the other hand, the court did not mention that Autumn’s out-

of-court statements contradicted her testimony at the prelimi-

nary hearing in several material respects. The Nevada

Supreme Court’s inattention to these inconsistencies in

Autumn’s statements is potentially significant under AEDPA;

as the Supreme Court has observed and we have held, section

2254(d)(2) allows habeas relief “where the state has before it,

yet apparently ignores, evidence that supports [a] petitioner’s

claim.” Taylor, 366 F.3d at 1001 (paraphrasing Miller-El v.

Cockrell, 537 U.S. 322, 346 (2003)).

Although the Nevada Supreme Court did not expressly dis-

cuss Autumn’s statements at the preliminary hearing when

evaluating the consistency of her out-of-court statements, it

did not ignore these statements altogether. The court clearly

recognized the inconsistencies in Autumn’s statements,

because the “Facts” section summarized Autumn’s relevant

testimony at the preliminary hearing. See Bockting, 847 P.2d

at 1365 (“At the preliminary hearing, . . . . [Autumn] stated

that her pants were never removed [during the alleged abuse]

and that she could not remember how Bockting touched

her.”). Thus, this testimony was an “aspect of the record evi-

dence” that the state supreme court incorporated into its eval-

uation of the “totality of the circumstances surrounding the

BOCKTING v. BAYER 5929

child’s out-of-court statements, as defined in Wright.” Id. at

1369-70. As such, I would reject Bockting’s assertion that the

state supreme court “fail[ed] to consider and weigh relevant

evidence that was properly presented.” Taylor, 366 F.3d at

1001.

Moreover, Autumn’s testimony at the preliminary hearing

does not compel the conclusion that the Nevada Supreme

Court’s reliability analysis runs “contrary to, or involve[s] an

unreasonable application of,” Roberts or Wright. 28 U.S.C.

§ 2254(d)(1). As we recently explained, “the Supreme Court

has specifically ‘decline[d] to endorse a mechanical test for

determining ‘particularized guarantees of trustworthiness’

under [Roberts],’ ” and “ ‘courts have considerable leeway in

their consideration of appropriate factors.’ ” Parle v. Runnels,

387 F.3d 1030, 1039 (9th Cir. 2004), quoting Wright, 497

U.S. at 822. In this case, the state supreme court had good rea-

son to focus on the consistency of Autumn’s statements to her

mother and Detective Zinovitch and discount the reliability of

her in-court statements as factors in its reliability analysis.

Autumn’s testimony at the preliminary hearing was patently

evasive, perhaps reflecting her emotional state, her desire to

minimize harm to her stepfather, and her embarrassment at

being asked to discuss the assault’s graphic details in an open

public forum. Doctor Donovan’s expert testimony also indi-

cated that Autumn’s equivocation at the preliminary hearing

was consistent with the denial phase child abuse victims com-

monly endure after a sexual assault. Considering the totality

of the circumstances surrounding Autumn’s hearsay state-

ments, see id. at 820, I am not persuaded that the Nevada

Supreme Court applied Roberts and Wright unreasonably by

holding that Autumn’s testimony at the preliminary hearing

does not singlehandedly tip the scale of reliability against the

admission of her out-of-court statements.

Since the Nevada Supreme Court’s “unavailability” and

“adequate indicia of reliability” determinations satisfy

5930 BOCKTING v. BAYER

AEDPA’s stringent standard of review, Bockting’s Confron-

tation Clause claim fails.

II.

In addition to his Confrontation Clause claim, Bockting

raises several other claims in support of his habeas petition.

Although neither Judge McKeown nor Judge Noonan discuss

these issues, I explain why these arguments should not require

reversal.

A.

Bockting contends that the state trial court violated his right

to due process by admitting witness testimony regarding a

prior accusation of sexual misconduct. Bockting takes issue

with the following exchange between Deputy District Attor-

ney Lukens and Laura, which took place during the state’s

rebuttal to defense character evidence:

Q: Without going into the details underlying this,

I am going to ask you the following question.

Between July of 1987 and October of 1987, did

you have occasion to confront the defendant

with allegations of sexual contact between him

and Autumn?

A: Yes.

Q: What was his response at the time?

A: He denied it, said he wouldn’t do anything like

that, he was crying so at that time I didn’t

believe what she said.

Bockting did not object to these questions or request a limit-

ing instruction, and the state trial court did not give such an

instruction.

BOCKTING v. BAYER 5931

During his “post conviction relief” hearing, Bockting

argued that Laura’s testimony impermissibly allowed the jury

to consider past allegations of sexual assault as evidence that

he committed the subsequent sexual assault for which he was

convicted. The state trial court and supreme court upheld the

evidence’s admission, holding that the trial court’s decision

was consistent with state evidence law. See NEV. REV. STAT.

48.045(1) (“Evidence of a person’s character or a trait of his

character is not admissible for the purpose of proving that he

acted in conformity therewith on a particular occasion, except

. . . [as] offered by an accused, and similar evidence offered

by the prosecution to rebut such evidence . . . .”); id. 48.055

(“In all cases in which evidence of character or a trait of char-

acter of a person is admissible, proof may be made by testi-

mony as to reputation or in the form of opinion. On cross-

examination, inquiry may be made into specific instances of

conduct.”).

I do not consider at this stage whether the Nevada Supreme

Court misinterpreted Nevada law by refusing to grant post-

conviction relief based on the trial court’s decision to admit

Laura’s testimony without providing a limiting instruction sua

sponte. “Incorrect state court evidentiary rulings cannot serve

as a basis for habeas relief unless federal constitutional rights

are affected.” Whelchel v. Washington, 232 F.3d 1197, 1211

(9th Cir. 2000) (internal quotation marks and citation omit-

ted). Thus, my task is limited to deciding whether the evi-

dence’s admission violated Bockting’s clearly established

federal rights as defined by the Supreme Court. See 28 U.S.C.

§ 2254(d)(1).

The Supreme Court has never decided whether due process

prohibits the admission of prior bad acts evidence, see Estelle

v. McGuire, 502 U.S. 62, 75 n.5 (1991) (declining to decide

whether due process prohibits prior bad acts evidence to show

propensity to commit a crime); Bugh v. Mitchell, 329 F.3d

496, 512 (6th Cir. 2003), cert. denied, 124 S. Ct. 345 (2003)

(mem.) (“There is no clearly established Supreme Court pre-

5932 BOCKTING v. BAYER

cedent which holds that a state violates due process by permit-

ting propensity evidence in the form of other bad acts

evidence.”), but it has said that defendants who challenge a

state court’s admission of relevant evidence on due process

grounds “must sustain the usual heavy burden that a due pro-

cess claim entails: . . . ‘it [must] offend[ ] some principle of

justice so rooted in the traditions and conscience of our people

as to be ranked as fundamental.’ ” Montana v. Egelhoff, 518

U.S. 37, 43 (1996) (plurality), quoting Patterson v. New York,

432 U.S. 197, 202 (1977) (internal footnote omitted).

In this case, the admission of Laura’s unobjected-to testi-

mony did not meet this “heavy burden” for a valid due pro-

cess claim. The trial court admitted Laura’s testimony during

the state’s rebuttal case as a response to the testimony of three

defense witnesses who testified concerning Bockting’s

alleged good reputation and character. Laura’s rebuttal testi-

mony was relevant to impeach the defense’s reputation evi-

dence. The prosecutor touched on Laura’s previous

allegations only briefly, deliberately skirted the allegations’

underlying details to minimize prejudice, and fully disclosed

Bockting’s vehement denial of the allegations. Moreover, the

testimony arguably advanced Bockting’s defense by introduc-

ing his emotional denial of the previous allegations, as well

as Laura’s concession that she “didn’t believe” the allega-

tions. Given that this evidence came in response to defense

character evidence and taking into account the lack of objec-

tion, the brevity, and limited scope of the government’s ques-

tioning relating to Laura’s previous confrontation with

Bockting, it was not unreasonable for the Nevada Supreme

Court to conclude that the admission of this evidence did not

transgress a “principle of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental.”

Id. (internal quotation marks omitted).

B.

Bockting asserts that the government violated his due pro-

cess right to a fair trial by vouching for Laura’s credibility

BOCKTING v. BAYER 5933

during closing argument. See United States v. Necoechea, 986

F.2d 1273, 1276 (9th Cir. 1993) (“Vouching consists of plac-

ing the prestige of the government behind a witness through

personal assurances of the witness’s veracity, or suggesting

that information not presented to the jury supports the wit-

ness’s testimony.”). As examples of vouching, Bockting cites

the prosecutor’s statements that Laura “testified as candidly as

I think is possible” and “had one motive and it was to tell you

the truth.” He also faults the prosecutor for characterizing

Laura’s testimony as “unembellished, . . . straightforward, and

. . . candid.”

Even if these statements arguably constituted “vouching,”

Bockting does not qualify for habeas relief under AEDPA’s

deferential standard if the Nevada Supreme Court’s failure to

grant post-conviction relief on this basis was neither “contrary

to,” nor “involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1). According to

the Supreme Court, “[t]he relevant question” in evaluating a

prosecutorial vouching claim “is whether the prosecutors’

comments so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986).

Several factors work to Bockting’s disadvantage here. First,

the prosecutor did not ask the jury to accept Laura’s credibil-

ity based on his endorsement alone; rather, he explained that

“[t]he evidence shows that [Laura] was candid” (emphasis

added), and he identified several specific instances where

Laura made no attempt to conceal facts damaging to

Autumn’s allegations (e.g., Autumn observing her parents

engaged in sexual relations) or to her own reputation and

credibility as a government witness (e.g., her drug and alcohol

problems, her occupation as a nude dancer). See Necoechea,

986 F.2d at 1276 (recognizing “that prosecutors must have

reasonable latitude to fashion closing arguments, and thus can

argue reasonable inferences based on the evidence, including

5934 BOCKTING v. BAYER

that one of the two sides is lying”). Second, the trial court sig-

nificantly diminished the risk of prejudice by instructing the

jury that “[s]tatements, arguments and opinions of counsel are

not evidence in the case.” As in Davis v. Woodford, 333 F.3d

982 (9th Cir. 2003), “[t]his was not a case in which there was

an ‘overwhelming probability that the jury [would] be unable

to follow the court’s instructions’ and ‘a strong likelihood that

the effect of the [vouching] would be devastating to the defen-

dant,’ ” id. at 997 (second alteration in original), quoting

Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). Third and per-

haps most important, the prosecutor’s statements did not ren-

der the trial fundamentally unfair because the record

confirmed Laura’s testimony, including: testimony by Doctor

Rivers (who conducted Autumn’s rape examination) that

Autumn had suffered penetration injuries to her vagina and

rectum during the previous week, Bockting’s admission that

he was the only adult male who was alone with Autumn dur-

ing the week when she sustained her injuries, and Detective

Zinovitch’s testimony substantially corroborating Laura’s

description of Bockting’s sexual assault. In sum, under the

circumstances of this case, Bockting has not demonstrated

that the Nevada Supreme Court applied the principle in Dar-

den unreasonably by holding that the prosecutor’s vouching

did not “so infect[ ] the trial with unfairness as to make the

resulting conviction a denial of due process.” Davis, 333 F.3d

at 996-97, quoting Darden, 477 U.S. at 181.

C.

Lastly, I consider Bockting’s assertion that his representa-

tion at trial was constitutionally deficient. The Supreme Court

has held that a claimant “must show that counsel’s perfor-

mance was deficient” and that such “performance prejudiced

the defense” to prevail on a Sixth Amendment ineffective

assistance of counsel claim. Strickland v. Washington, 466

U.S. 668, 687 (1984). To establish prejudice, a claimant must

demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

BOCKTING v. BAYER 5935

been different. A reasonable probability is a probability suffi-

cient to undermine confidence in the outcome.” Id. at 694.

The question to be answered is whether the Nevada Supreme

Court’s denial of post-conviction relief was “contrary to, or

involved an unreasonable application of,” these principles. 28

U.S.C. § 2254(d)(1).

I confine my ineffective assistance analysis to the three

issues addressed in our October 16, 2002 order granting

Bockting’s first motion to broaden the Certificate of Appeala-

bility (COA): (1) trial counsel’s failure to object to inadmissi-

ble hearsay evidence at trial, (2) trial counsel’s failure to

object to repeated instances of prosecutorial vouching, and (3)

appellate counsel’s failure to research adequately and present

these appealable issues to the Nevada Supreme Court. Bock-

ting’s second motion to broaden the COA, which is currently

before this court, raises a fourth ineffective assistance of

counsel issue: his “trial counsel’s failure to conduct any

investigation of the facts which would undermine the reliabil-

ity of the child’s hearsay statements.” The second motion for

broader certification was filed on June 17, 2003—more than

a year after the district court declined to certify Bockting’s

ineffective assistance of counsel claim and eight months after

we granted his first motion to broaden the COA. Pursuant to

Circuit Rule 22-1(d), Bockting should have raised any and all

grievances relating to the COA’s scope “within thirty-five

days of the district court’s entry of its order denying[, in part,

his] certificate of appealability.” 9TH CIR. R. 22-1(d). His

“[f]ailure to comply with the Circuit Rule’s procedure is a

ground for denying” the second motion, “which [I would] do

here.” Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003).

With respect to the remaining Sixth Amendment claims,

the Nevada Supreme Court invoked Strickland’s standard and

held that Bockting “has not demonstrated that counsel’s per-

formance was unreasonable, or that counsel’s errors were so

severe that they rendered the jury’s verdict unreliable.” I need

not consider the first part of this holding, because the record

5936 BOCKTING v. BAYER

as a whole does not support Bockting’s claim that the state

supreme court unreasonably applied Strickland’s prejudice

inquiry. Cf. Kennedy v. Lockyer, 379 F.3d 1041, 1053 (9th

Cir. 2004) (observing that “[i]n making a harmless error

determination in a habeas case,” federal courts have “an obli-

gation” to consult the full record), quoting O’Neal v.

McAninch, 513 U.S. 432, 435 (1995).

Bockting faults his trial counsel for failing to object to the

government’s prior bad acts evidence, but he has not demon-

strated that he suffered any prejudice from his counsel’s alleg-

edly deficient performance. A timely objection by Bockting’s

counsel likely would have been futile, because Laura’s testi-

mony was admissible under state law. In addition, even set-

ting aside Laura’s testimony concerning Bockting’s prior bad

acts evidence, the evidence against Bockting was overwhelm-

ing. Similar logic dooms Bockting’s other arguments. His trial

counsel’s failure to register a timely objection to the prosecu-

torial vouching did not clearly prejudice his defense, because

the trial court gave a cautionary instruction and there was

overwhelming evidence corroborating Laura’s testimony.

In sum, Bockting has not shown that the Nevada Supreme

Court applied Strickland unreasonably to the facts of this case

by holding that his “counsel’s errors were [not] so serious as

to deprive [him] of a fair trial, a trial whose result is reliable.”

Strickland, 466 U.S. at 687. I would therefore hold that we

lack authority under AEDPA to grant Bockting’s petition for

habeas relief on this ineffective assistance of counsel claim.

For the foregoing reasons, I would affirm the district

court’s denial of Bockting’s petition for habeas corpus. I

therefore respectfully dissent.